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Criminal Law/Procedure > Module 7-9 - Property Offenses, Defenses, Offenses Involving Judicial Procedure > Flashcards

Module 7-9 - Property Offenses, Defenses, Offenses Involving Judicial Procedure Flashcards

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1
Q

larceny

A

(1) a taking
(2) and carrying away (asportation)
(3) of tangible personal property
(4) of another with possession
(5) by trespass (without consent or consent induced by fraud)
(6) with the intent to permanently deprive that person of their interest in the property

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2
Q

asportation

A

slightest movement of the property

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3
Q

possession of property

A

if D had possession of the property at the time of the taking, the crime is not larceny (could be embezzlement)

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4
Q

custody vs. possession of property

A

Possession –> D has discretionary authority of the property
custody –> D has only limited authority over the property

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5
Q

bailees

A

generally has possession only (embezzlement); but if they “break the bulk” of the packaging and take something, it is larceny

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6
Q

intent to permanently deprive

A

has to be present at the time that the property is taken

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7
Q

larceny: insufficient, possibly sufficient, and sufficient intent

A

insufficient: D believes that the property that they have taken is theirs, or they only intended to borrow it

possibly sufficient: D intends to the pay for the goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward)

sufficient: intent to create a substantial risk of loss, or intent to sell or pledge the goods to the owner

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8
Q

abandoned, lost, or mislaid property

A

larceny can occur with lost or mislaid property (ex. delivery by mistake), but NEVER with abandoned property

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9
Q

continuing trespass and larceny

A

D wrongfully takes the property WITHOUT the intent to permanently deprive and later decides to keep the property, D is guilty of larceny IF THEY DECIDE TO KEEP IT

if original taking WAS NOT wrongful, and D later decides to keep it, there is no larceny

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10
Q

embezzlement

A

(1) fraudulent
(2) conversion
(3) of personal property
(4) of another
(5) by a person with LAWFUL POSSESSION of that property

INTENT: intent to defraud

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11
Q

larceny vs. embezzlement

A

Embezzlement: D misappropriates property while it is in their RIGHTFUL POSSESSION

Larceny: D misappropriates property NOT in their possession

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12
Q

If D intends to restore the exact property taken, is it still embezzlement?

A

NO

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13
Q

If D intends to restore similar or substantially identical property, is it still embezzlement?

A

YES; even if it was money that was initially taken and other money - of identical value - that they intended to return

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14
Q

Embezzlement IS/IS NOT committed if the conversion is pursuant to a claim of right in the property.

A

IS NOT

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15
Q

false pretenses

A

(1) obtaining TITLE
(2) to personal property of another
(3) by an intentional false statement of a past or existing fact
(4) with the intent to defraud the other

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16
Q

What is required for false pretenses?

A

MISREPRESENTATION; victim must be ACTUALLY DECEIVED or act in reliance on a misrepresentation and must be a major factor

Majority (MPC): any false representation suffices, including a false promise to perform in the future

Minority: if related to a past or present fact, and false promises to do something in the future, even without present intent to perform is NOT SUFFICIENT

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17
Q

larceny by trick vs. false pretenses

A

if the victim is TRICKED by a misrepresentation of fact into giving up mere CUSTODY OR POSSESSION of property, then the crime is LARCENY BY TRICK

if the victim is tricked into GIVING UP TITLE, the crime is false pretenses

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18
Q

robbery

A

(1) taking
(2) of personal property of another
(3) from the other’s person or possession
(4) by force or threats of immediate death or physical injury
(5) with the intent to permanently deprive them of it (specific intent)

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19
Q

larceny vs. robbery

A

robbery requires that D use force or threats to obtain or retain victim’s property

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20
Q

extortion

A

the corrupt collection of an unlawful fee by an officer under the color of office (blackmail); obtaining property by means of threats to do harm or to expose information

property need not be obtained

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21
Q

extortion vs. robbery

A

extortion –> threats may be of future harm and the taking does not have to be in the presence of the victim

robbery –> threats have to be for immediate harm and D has to actually take the property

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22
Q

receipt of stolen property

A

(1) receiving possession and control
(2) of “stolen” personal property
(3) KNOWN TO HAVE BEEN OBTAINED in a manner constituting a criminal offense
(4) by another person
(5) with the intent to permanently deprive the owner of their interest in it

property must be “stolen” at the time that D receives it

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23
Q

forgery

A

(1) making or altering
(2) a writing with apparent legal significance
(3) so that it is false
(4) with the intent to defraud

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24
Q

fraudulently obtained signature of another

A

if D fraudulently causes a third person to sign a document that the third person did not realize that they are signing, A FORGERY HAS BEEN COMMITTED; if the third person realizes that they are signing the document, a forgery has not been committed even if the person who signed it was induced by fraud

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25
Q

uttering a forged instrument

A

(1) offering as genuine
(2) an instrument that may be the subject of forgery and is false
(3) with intend to defraud

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26
Q

burglary

A

(1) a breaking
(2) and entry
(3) of a dwelling
(4) of another
(5) at nighttime (CL only)
(6) with the intent to commit a felony therein

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27
Q

burglary: breaking

A

not a breaking for a person to walk through a wide open door; is a breaking if they push the interior door to another room

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28
Q

constructive “breaking”

A

breaking by fraud or threat

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29
Q

burglary: entering

A

any part of the body crosses into the structure

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30
Q

burglary: dwelling house of another

A

cannot be a barn or a commercial structure; has to be a house

31
Q

burglary: intent to commit a felony therein

A

must exist AT THE TIME of the breaking and entering

32
Q

arson (CL)

A

(1) malicious
(2) burning
(3) of the dwelling
(4) of another

MPC: includes damage from explosion; includes commercial structures

INTENT: none, malice (reckless disregard of obvious risk that structure would burn)

33
Q

Is scorching sufficient to establish arson?

A

NO; charring is

34
Q

CL houseburning

A

(1) a malicious
(2) burning
(3) of one’s OWN dwelling
(4) if the structure is situated either in a city or town, or so near to other homes as to create a danger to them

35
Q

insanity tests

A

(1) M’Naughten
(2) irresistible impulse
(3) Durham/New Hampshire
(4) ALI/MPC

36
Q

M’Naughten test

A

D is entitled to acquittal if:
(1) disease of the mind
(2) caused a defect of reason
(3) such that the D lacked the ability at the time of their actions to either KNOW OF THE WRONGFULNESS of their actions or UNDERSTAND THE. NATURE AND QUALITY of their actions

37
Q

Irresistible Impulse

A

D entitled to acquittal ONLY IF b/c of mental illness, they were UNABLE TO CONTROL their actions or conform their conduct to the law

38
Q

Durham (New Hampshire)

A

D entitled to acquittal if crime was the product of their mental illness (broadest)

39
Q

ALI/MPC Insanity

A

D entitled to acquittal if they had a mental disease or defect and as a result, they LACKED SUBSTANTIAL CAPACITY to either:
(1) appreciate the criminality of their conduct; or
(2) conform their conduct to the requirements of law

40
Q

majority rule for insanity

A

D prove insanity by preponderance of the evidence

41
Q

minority rule/MPC for insanity

A

prosecution prove that D was sane beyond a reasonable doubt

42
Q

federal court rule for insanity

A

D prove insanity by clear and convincing evidence

43
Q

pretrial psychiatric examinations

A

if D does not raise insanity issue, they can refuse exam

if D DOES raise insanity issue, they CANNOT refuse exam

44
Q

intoxication

A

can be raised whenever intoxication negates one of the elements of a crime (specific intent only)

45
Q

bar examiners presume that all defendants who commit a crime while intoxicated were _______________ intoxicated

A

voluntarily

46
Q

involuntary intoxication as a defense to ALL CRIMES

A

results from the taking of an intoxicating substance WITHOUT KNOWLEDGE of its nature, under the direct duress imposed by another, or pursuant to MEDICAL ADVICE while unaware of the substance’s intoxicating effect

47
Q

infancy as a defense

A

CL –> under 7 years old, no liability; 7-14 yeas old rebuttable presumption that the child was unable to understand the wrongfulness of their acts; 14 and older, treated as adults

modern –> no child can be convicted of a crime until a stated age is reached, usually 13 or 14 (exception: Juvi courts)

48
Q

non deadly force

A

person without fault may use as much force as the person reasonably believes is necessary to protect themselves from imminent use of unlawful force upon themself; NO DUTY TO RETREAT

49
Q

deadly force as self-defense

A

can use if the person:
(1) is without fault;
(2) is confronted with unlawful force; and
(3) reasonably believes that they are threatened with imminent death or great bodily harm

50
Q

majority rule and minority rule for duty to retreat with deadly force

A

Majority: no duty to retreat

Minority: duty to retreat UNLESS:
(1) the attack occurs within the victim’s own home
(2) the attack occurs while the victim is making a lawful arrest
(3) the assailant is in the process of robbing the victim

51
Q

right of aggressor to use self-defense

A

they may use force in defense of themselves ONLY IF:
(1) they effectively withdraw from the confrontation and communicate their desire to the other side to do so; or
(2) victim of the initial aggression SUDDENLY ESCALATES the minor fight into a deadly altercation and the initial aggressor HAS NO CHANCE TO WITHDRAW

52
Q

defense of others

A

D has the right to defend others if they reasonably believe that the person assisted has the legal right to use force IN THEIR OWN DEFENSE

need the reasonable appearance of the right to use force

generally does not need to be a special relationship between the defendant and the person on behalf of whom they acted

53
Q

defense of a dwelling

A

person may use non deadly force in defense of their dwelling when they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling

CAN USE DEADLY FORCE only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent personal attack to themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling

54
Q

defense of property

A

deadly force may NEVER be used to defend property; reasonable non deadly force may be used to defend property in one’s possession from what they reasonably believe is an immediate, unlawful interference

can use force to regain possession of property that D reasonably believes was wrongfully taken ONLY IF they are in immediate pursuit of the taker

55
Q

crime prevention

A

non deadly –> use to the extent that reasonably appears necessary to prevent a felony or serious breach of the peace

deadly –> use only if it appears REASONABLY NECESSARY to terminate or prevent a dangerous felony involving risk to human life

56
Q

use of force to effectuate arrest - police officers

A

non deadly –> use if reasonably necessary

deadly –> reasonable only if it is necessary to prevent the felon’s escape AND the officer reasonably believes that the felon threatens death or serious bodily harm

bystander summoned to help police officer has the same authority to use force that officer does; good faith assistance is justified

57
Q

use of force to effectuate arrest - private persons

A

same right to arrest as officer, except:
(1) privilege to use non deadly force if the crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime
(2) may use deadly force ONLY IF the person harmed was actually guilty of the offense for which the arrest was made

58
Q

resisting arrest

A

majority –> non deadly force may be used to resist an improper arrest even if a known officer is making the arrest; deadly force may be used ONLY IF the person does not know that the person arresting them is an officer

59
Q

duress

A

defense to a crime OTHER THAN INTENTIONAL HOMICIDE that D reasonably believed that another person would imminently inflict death or SBI upon them or a member of their family if D did not commit the crime

MPC –> allows duress as excuse for commission of a crime to protect property, assuming the value of the property outweighs the harm done to society by commission of the crime

60
Q

necessity

A

person reasonably believed that the commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime; objective test, good faith is not sufficient

CL –> natural forces; MPC has abandoned this view

61
Q

limitations on necessity

A

causing the death of another person is never justified

not available if D is at fault in creating the situation

62
Q

mistake or ignorance of fact

A

relevant to criminal liability only if it shows that the defendant LACKED THE STATE OF MIND REQUIRED FOR THE CRIME

63
Q

mistake or ignorance of fact: reasonableness

A

if offered to disprove specific intent, mistake need not be reasonable

if offered to disprove any other state of mind, MUST be reasonable

64
Q

mistake or ignorance of the law

A

not a defense; if the reliance on an attorney negates a necessary mental state element, such reliance can demonstrate that government has not proved its case BRD

65
Q

exceptions to necessity limitations

A

D has a defense if:
(1) statute proscribing their conduct was not published or made reasonably available prior to conduct;
(2) reasonable reliance on state or judicial decision; or
(3) reasonable reliance on official interpretation or advice

66
Q

mistake or ignorance of the law may negate intent

A

ignorance or mistake must involve element of the crime, not the existence of a statute making it criminal

67
Q

entrapment

A

occurs if the intent to commit the crime originated not with D, but officers; exists only if:
(1) criminal design originated with law enforcement officers; and
(2) D was not predisposed to commit the crime prior to contact by the government

officer encouragement and inducement = entrapment

68
Q

entrapment is not available as a defense when…

A

“entrapped” by a private citizen

69
Q

perjury

A

intentional taking of a false oath in regard to a material matter

70
Q

subordination of perjury

A

procuring or inducing another to commit perjury

71
Q

bribery

A

CL –> corrupt payment or receipt of anything of value for official action

Modern –> extended to nonpublic officials, either the offering of a bribe or the taking of a bribe may constitute the crime

72
Q

compounding a crime

A

agreeing, for valuable consideration, not to prosecute another for a felony or to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon

73
Q

misprision of a felony

A

CL –> failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony

Modern –> no longer a crime, or if it is, it requires some affirmative action in aid of the felon

Criminal Law/Procedure (5 decks)

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